Callaway v. Adams

• Decision Date: 14 April 1949
• Docket Number: 4 Div. 502.
• Parties: CALLAWAY v. ADAMS.
• Court: Alabama Supreme Court

40 So.2d 73

252 Ala. 136

CALLAWAY v. ADAMS.

4 Div. 502.

Supreme Court of Alabama

April 14, 1949

A M. McDowell and McDowell & McDowell, all of Eufaula, and R. E. L. Cope, Jr., and Cope & Cope, all of Union Springs, for appellant.

Lawrence K. Andrews, of Union Springs, for appellee.

The following were refused to defendant:

'4 The Court charges the jury that they are entitled to consider the damage to the tractor and trailer which plaintiff was operating at the time it collided with the train as disclosed by the evidence in considering and determining the speed of the tractor and trailer at the time of the collision.

'5 The Court charges the jury that, the rule of law is, in the absence of statutory requirements, the mere leaving of a train across a public highway, without lights or other signals to disclose its presence there, is not per se negligence; and, that, for injuries received by running into the train, the obstruction by the train on the highway is not to be considered as the efficient cause of such injuries, but merely as a condition which in and of itself furnishes no cause of action; the fact that the condition of obstruction is unreasonably prolonged makes no difference in the application of the rule.'

'7: The Court charges the jury that, if you are reasonably satisfied from the evidence in this case, that on the occasion complained of, while plaintiff who was operating his tractor and trailer at said time and place, was at a point sufficiently distant from the track on which said train was standing obstructing the crossing so that he could have safely stopped said tractor and trailer at a place of safety by the exercise of such care as a reasonable man would have used under the same or similar circumstances and if you are further reasonably

satisfied from the evidence that plaintiff then and there became aware that the train standing on said track was obstructing the crossing, and then and there knew of the danger of attempting to cross the tracks on which said train was standing obstructing the crossing, and that the said plaintiff thereby conscious of his danger in so doing attempted to cross said tracks by running or driving his tractor and trailer into the train, then I charge you, you can not find a verdict for the plaintiff in this case under Count One (1) of the complaint.

'8: The Court charges the jury that, a motorist who approached a railroad crossing without stopping, looking and listening, and when upon reaching said crossing and discovers a train standing on tracks over a public street crossing, in regular course in the night time, and attempts to cross the tracks drives or permits his tractor and trailer to collide with the train, is chargeable with contributory negligence as proximate cause of the damage to his motor vehicle, which precludes recovery for such damages, and you can not find a verdict for the plaintiff under Count One (1) of the complaint.

'9: The Court charges the jury that, if you are reasonably satisfied from the evidence in this case that, on the occasion complained of, while plaintiff who was operating his tractor and trailer at said time and place, was at a point sufficiently distant from the crossing and tracks on which said train was standing and obstructing said crossing, so that he could have safely stopped said tractor and trailer at a place of safety by the exercise of such care as a reasonable man would have used under such circumstances, and if you are further reasonably satisfied from the evidence that plaintiff then and there became aware that the train was standing on said crossing, obstructing the same, and then and there knew of the danger of attempting to cross the tracks on which said train was standing and obstructing said crossing, and that he thereafter, conscious of his danger in so doing attempted to cross said tracks at said crossing which was obstructed, and collided with the train, then I charge you that you can not find a verdict for the plaintiff in this case under Count One (1) of the complaint.

'10. The Court charges the jury that under the evidence in this case plaintiff who had control of and who was operating his tractor-trailer at the time he drove the same into the train was negligent as a matter of law at the time and place complained of, in that he failed to stop, look or listen before attempting to cross the railroad track, and if you believe from the evidence that such negligence contributed proximately even in the remotest degree to the damage to his tractor-trailer, you can not find for the plaintiff under the first Count of the complaint.

'11. The Court charges the jury that, it is a rule of law that, after a train reaches a crossing and is standing thereon, the duty of a flagman or other mode of warning ends as to that particular train, and such person is not negligent in then leaving his post of duty, or that other mode of warning be given, since the train standing on such crossing itself is then a sufficient warning.'

SIMPSON, Justice.

Alabama Highway No. 6 makes a grade crossing with the tracks of the Central of Georgia Railway Company within the city limits of Union Springs. On November 17, 1947, about 7:30 p. m., in switching cars, the defendant had left a freight train standing across and blocking this highway, where it remained unlighted, without guard or flagman, for a period of several minutes. The appellee, Adams, was traveling this highway westwardly in his K-7 International Tractor and 28-foot refrigerator trailer. His tractor was equipped with proper headlights and both vehicles with standard brakes in good mechanical condition. He did not know the crossing was there and did not observe the train until just before reaching it when he was unable to come to a complete stop and his vehicle collided with one of the cars and was demolished.

The case was brought to issue on Count 1 for simple negligence charged against the defendant, its agents or servants, etc., in so obstructing the highway, and pleas of the general issue and contributory negligence.

The following facts are fully sustained by plaintiff's evidence: By reason of the downgrade of the highway leading west toward the crossing, lights on motor vehicles traveling in that direction are focused only on the roadway until in immediate vicinity of the crossing, at which point the highway makes an abrupt upgrade and the lights then become focused on a view of the crossing. This was the situation with which the plaintiff was confronted immediately as he approached the crossing. The lights of his vehicle were in good order and would reveal an object at considerable distance under normal conditions, but by reason of this topography the presence of the train on the track was not revealed and could not be discovered until within 20 or 30 feet therefrom, and traveling then at a rate of about 20 or 25 miles an hour, he was unable to stop and avoid the collision, since it required about 120 feet distance to bring his vehicle to a halt. The plaintiff was a stranger and not familiar with the locus in quo and had no knowledge or notice of the presence of the car obstructing the highway until too late to stop. The railroad company did maintain on the east side of its track at the crossing a signal light, but due to the view being obstructed by overhanging branches of pecan trees growing on property adjacent to the defendant's right of way, these signal lights could not be observed by travelers going in that direction until just before reaching the crossing. According to plaintiff's witnesses, no other warning was given of the presence of the train, nor did the personnel in charge thereof undertake to ascertain the condition of the crossing as regards hazard to the traveling public when the train was left standing there.

As stated, these facts were fully sustained by the evidence offered for the plaintiff, including the testimony of two ministers of the gospel, who were traveling immediately ahead of the plaintiff as plaintiff attempted to pass them, and who witnessed the collision, and were just able to bring their vehicles to a stop before reaching the crossing; and a member of the Alabama Highway Patrol, who investigated the accident immediately thereafter and observed the condition of the highway, the signal...